Alabama Senate Bill 197

Summary

Alabama Senate Bill 197 creates a right of publicity in an individual’s “indicia of identity,” in, but not limited to, name, signature, photograph, image, likeness, voice or other “similar imitation.” Section 4 of the bill provides an “expressive works exception” from the right. But an amendment to the bill creates a “caveat” for any expressive work that is “a replica as to constitute a copy” of a person’s “indicia of identity.” The “caveat” says that those expressive works are only exempt from the right of publicity to the extent they are protected by the U.S. and Alabama Constitutions.

Status

Governor Robert Bentley signed the bill with the “caveat” for the “expressive works exception.” It goes into effect August 1, 2015.

Analysis

The “caveat” that certain expressive works are only exempt if they are protected by the U.S. Constitution is very similar to the caveat in Arkansas Senate Bill 79. Even though the right of publicity applies to commercial works, the “expressive works exception” is added to right of publicity laws to protect creators and distributors of non-commercial speech from costly and prolonged litigation. But this “caveat” means that the list does not actually provide protection for these creators and distributors, because it forces them to vindicate their First Amendment rights in court.

Without this protection, a noted public figure, upset about an uncomplimentary book or film, could force the publisher or producer to prove they have the right to create the work. These lawsuits can take years to decide and cost hundreds of thousands of dollars. The time and cost of such litigation could force producers and distributors of biographies, histories, documentaries and other important social commentary to avoid a lawsuit.

In addition, two definitions in the bill are vague. It is unclear what the legislation means by “a replica as to constitute a copy.” The term could include photographs or the use of historic footage in films such as Forrest Gump or Zelig. A broad reading of the term could apply to an uncanny impersonation such as Tina Fey’s portrayal of Sarah Palin in a Saturday Night Live skit. The definition of “indicia of identity” is also vague, because it said that it includes name, likeness and other elements of identity, but it is not limited to that. It is unclear what other elements would be included in “indicia of identity,” leaving creators and distributors vulnerable to being sued.

History

On March 10, 2015, the bill was introduced [11] and referred to the Senate Committee on Judiciary. As introduced, the bill does not include the “expressive works exception.”

The bill was amended [12] to include the “expressive works exception.” The Senate Committee on Judiciary recommended the bill be passed as amended on March 19, 2015, and the full Senate passed the bill.

The bill was sent to the House and referred to the House Committee on Judiciary. Media Coalition sent a letter to the members of the committee [10], explaining concerns about a potential amendment to the bill that would include a “caveat” for certain expressive works.

On April 16, 2015, the House Committee on Judiciary amended the bill to include the “caveat” for certain expressive works. The “caveat” makes the “expressive works exception” contingent on the use being protected by the U.S. and Alabama Constitutions.